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Aprende Middle School

Incoming Kyrene middle school student at center of transgender sports fight

Arizona schools chief cites unfair competition in new court filing

Posted 5/20/23

PHOENIX - Two transgender girls, including one set to attend Aprende Middle School in the Kyrene district, want a judge to void a new state law that prohibits them from play on teams designated for …

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Aprende Middle School

Incoming Kyrene middle school student at center of transgender sports fight

Arizona schools chief cites unfair competition in new court filing

Posted

PHOENIX - Two transgender girls, including one set to attend Aprende Middle School in the Kyrene district, want a judge to void a new state law that prohibits them from playing on teams designated for girls.

However, in a new court filing, Tom Horne, the superintendent of schools in Arizona, said the 2022 statute both protects biological girls from unfair competition and ensures they are not injured by those who are stronger and more powerful.

And Horne dismissed as unfounded the contention that the two girls have no advantage because they are either prepubescent or are taking puberty blockers.

Horne also said even if that is true - a point he is not conceding - the girls have a legal remedy far short of being allowed to compete in sports designated for girls only.

"They can also seek an order requiring a co-ed team if this court ultimately finds that pre-puberty males have no advantage,'' wrote Dennis Wilenchik, one of the private attorneys hired by Horne after Attorney General Kris Mayes disqualified herself from defending the statute.

And that, Wilenchik told U.S. District Court Judge Jennifer Zipps, "would be a much more reasonable proposed remedy'' than an order allowing the two girls to participate in girls-only sports.

Hanging in the balance is a measure that requires public schools and any private schools that compete against them to designate their interscholastic or intramural sports strictly as male, female or coed. And it specifically says that teams designated for women or girls "may not be open to students of the male sex.''

Supporters said it was based on the inherent physical advantages of biological males.

The lawsuit does not challenge the entire law. But it contends that, given the two transgender girls have not entered puberty, the statute is unconstitutional at least as to them.

Besides the student in the Kyrene district, which includes portions of Tempe, Chandler, Phoenix and Guadalupe, a student at the Gregory School, a private school in Tucson, is part of the case.

The parents of the two transgender athletes earlier filed a lawsuit against Arizona’s ban on transgender girls participating in girls sports. One of the students is an 11-year-old who wants to play soccer, basketball and run cross country; the other is a 15-year-old who wants to play volleyball.

The lawsuit filed in U.S. District Court in Tucson claims the ban is a violation of Title IX because it is discrimination on the basis of sex.

The ban allows the plaintiffs to compete on teams consistent with their sex assigned at birth, which the lawsuit states would negatively impact the plaintiffs and go against medically prescribed treatment of gender dysphoria.

The suit also states the ban would cause the plaintiffs “to experience shame and stigma, denies them well-known physical and mental health benefits that arise from playing school sports and directly contributes to negative physical and emotional health consequences.”

Rachel Berg, staff attorney for the National Center for Lesbian Rights and additional counsel for the plaintiff, said in a press release following the parents' lawsuit that the ban does not take into consideration the individual circumstances of each athlete and instead is a sweeping ban.

“It cannot survive constitutional scrutiny, and it endangers transgender children,” Berg said.

The Kyrene School District released a statement earlier, saying the district does not know the identity of the student and is named as a defendant “because Arizona school boards are legally bound to follow the laws of the state.”

Horne, through his lawyers, said the claim of the lack of a physical advantage is wrong. And he cites several studies he said backs that determination.

But, even absent such scientific conclusions, Horne wants Zipps to rule that allowing transgender girls to participate in girls' sports makes no sense.

What it also does, he contends, is undermines Title IX, the federal law passed in 1972 designed to prohibit discrimination based on sex in education programs and activities that receive federal assistance.

"The purpose of enacting Title IX 50 years ago was to provide women with the same opportunities in sports as men,'' Wilenchik said.

"Allowing transgender females to participate in women's teams eliminates that level playing field and erodes all the progress celebrated in women's sports,'' he said. "The alternative is not only illogical but unfair.''

Attorneys for the transgender girls, by contrast, read Title IX's ban on discrimination on the basis of sex to also encompass individuals who are transgender.

"Neither Title IX, its regulations, nor its guidance purport to define 'sex' as something that is determined at fertilization and revealed at birth or in utero,'' they told Zipps.

But Horne's position is that even if Zipps does not agree with his claims that transgender girls have a biological advantage, she should not void the law - or even the part of it that affects pre-pubescent transgender girls.

"If ... they have no advantage, as plaintiffs' assert, then there should be co-ed teams,'' Wilenchik wrote.

"The logical solution the is not to put biological males on girls' teams, but to make those sports like the rest of life, coed,'' Wilenchik wrote.

"This is the solution that best addresses the needs of transgender females wishing to participate in sports who claim no physical advantage over biological females while still maintaining a level playing field.''

And if they still want a court order, Horne's attorney told Zipps, they remain free to ask her to order that certain sports be made co-ed, "which would be a much more reasonable proposed remedy.''

To a limited extent, that already had occurred.

Before the law took effect, the Arizona Interscholastic Association which governs high school sports already had protocols to handle requests by transgender athletes to participate in sports on a case-by-case basis.

Factors included a student's "gender story,'' including the age at which they became aware of the "incongruence'' between the sex assigned at birth and gender identity, and whether the student is undergoing gender transition.

And Dr. Kristina Wilson, who was on the AIA's medical advisory board, testified that out of 170,000 high school athletes there had been just 16 requests by transgender individuals to compete.

None of that convinced then-Gov. Doug Ducey who, in signing the measure, lashed out at the organization for even allowing any transgender youth to participate.

"It's a shame that the AIA and the NCAA (which governs college sports) won't speak out on these,'' he said. "So, we did in Arizona.''

Zipps has not set a date to consider the request to block enforcement of the law, at least as to these two transgender girls.

Cronkite News contributed to this story.

We’d like to invite our readers to submit their civil comments, pro or con, on this issue. Email AZOpinions@iniusa.org.